TMI Blog2011 (4) TMI 975X X X X Extracts X X X X X X X X Extracts X X X X ..... e expression ‘includes’ followed by ‘means’ in any definition is generally understood to be expanding the definition of the term to make it exhaustive, but in no manner can the expression ‘includes’ be utilized to limit the scope of definition provided in the main body of the definition. To our mind this was also not the intention of the Legislature in the present case. - 419 of 2010 - - - Dated:- 6-4-2011 - Akil Kureshi and Sonia Gokani, JJ. REPRESENTED BY : S/Shri Y.N. Ravani, Darshan Parikh, Varun Patel and Gaurang Bhatt, for the Appellant. S/Shri J.C. Patel with Paresh Dave, Dhaval Shah, Devan Parikh, B.L. Narasimhan, A.P. Nanawati, Hardhik Modh and Paresh V. Sheth, for the Respondent. [Judgment per : Akil Kureshi, J. (Oral)]. Though there are minor difference in facts, in all these Tax Appeals, legal issue arising is common. These appeals therefore have been heard together and are being disposed of by this common order. 2. For the purpose of this order, we may notice the facts as emerging in Tax Appeal No. 419/2010. 3. Revenue is in appeal against the judgment of the Customs, Excise Service Tax Appellate Tribunal (Tribunal for short) dated 28-7-2009 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not produced any documentary evidence before the authorities in terms of the Board s circular from which it can be established that the place of removal was beyond the factory gate and sale was on FOR basis. He further observed that the documents produced do not prove that the ownership of the goods remained with the assessee till the delivery at the door-step of the purchaser. 6.2 Not satisfied with the order, the assessee carried the issue further in appeal before the Tribunal. The Tribunal, as already noted, by the impugned order allowed the appeal, reversed the orders of the Revenue Authorities. Thereupon the Department has filed the Tax Appeal before us. 7. Though, as already noted, there are minor differences in facts in all the appeals, central issue is common. 8. Broadly stated, case of the assessee is that service tax paid on GTA for outward transportation of the goods even beyond the place of removal is eligible for Cenvat Credit in view of the definition contained in Rule 2(l) of the Cenvat Credit Rules defining the term input service . On the other hand, stand of the department is that for outward transportation of the goods beyond the place of removal, no credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wnership in the property may not have any relevance in so far insurance of goods sold during transit is concerned. It would therefore not be lawful to draw an inference of retention of ownership in the property sold by the seller merely by reason of the fact that the seller had insured such goods during transit to buyer. It is not necessary that insurance of the goods and the ownership of the property insured must always go together. It may be depending upon various facts and circumstances of a particular transaction and terms and conditions of sale. A reference has also been made to Colnvauz s Law of Insurance, Sixth Edition by Robert Merkin to indicate that there may be insurance to cover the interest of others that is to say not necessarily the person insuring the interest must be the owner of the property. (iii) In the case of Prabhat Zarda Factory Ltd. v. Commissioner of Central Excise, 2002 (146) E.L.T. 497 (S.C.), the Apex Court followed the earlier judgment in the case of Escorts JCB Ltd. (supra). (iv) In the case of Commissioner of Central Excise v. Accurate Meters Ltd., 2009 (235) E.L.T. 581 (S.C.), the Apex Court was examining the question whether the freight a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11. Learned counsel Shri Patel appearing with Shri Dhaval Shah for the assessee contended that the case of the assessee falls with the main body of the definition of input service. He submitted that the term input service is defined to include large number of services and no restrictive meaning to the definition can be given. Counsel relied on the following decisions : (i) In the case of All India Federation of Tax Practitioners v. Union of India, (2007) 7 S.C.C. 527J = 2007 (7) S.T.R. 625 (S.C.), wherein the Apex Court was examining the Constitutional validity of levy of service tax by Finance Act of 1994. The Apex Court described the nature of such service tax in the following manner : 8. As stated above, service tax is VAT. Just as excise duty is a tax on value addition on goods, service tax is on value addition by rendition of services. Therefore, for our understanding, broadly services fall into two categories, namely, property based services and performance based services. Property based services cover service providers such as architects, interior designers, real estate agents, construction services, mandapwalas etc. Performance based services are services pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f contraction. The expression relating to thus widens the scope of the definition. 27. Similarly, the use of the word activities in the phrase activities relating to business further signifies the wide import of the phrase activities relating to business. The Rule making authority has not employed any qualifying words before the word activities like main activities or essential activities etc. Therefore, it must follow that all and any activity relating to business falls within the definition of input service provided there is a relation between the manufacturer of concentrate and the activity. Therefore, the phrase activities relating to business are words of wide import. (iii) In the case of Commissioner of C.Ex. v. Ultratech Cement Ltd., 2010 (20) S.T.R. 577 (Bom.) = 2010 (260) E.L.T. 369 (Bom.) the Bombay High Court was considering the question whether outdoor catering service provided by the employer can be covered under the definition of input service. In that context, it was held and observed as under : 28. In the present case, the question is, whether outdoor catering services are covered under the inclusive part of the definition of input service . The ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce provided or to be provided and includes besides others in Clause (zzp) to any person by a goods transport agency, in relation to transport of goods by road in a goods carriage . Section 67 of the Finance Act, 1994 provides for valuation of taxable services for charging service tax. Section 68 of the Finance Act, 1994 is a charging section providing that every person providing taxable service to any person shall pay service tax at the rate specified in Section 66 in such manner and within such period as may be prescribed. Section 65(50b) defines goods transport agency as follows : (50b) goods transport agency means any person who provides service in relation to transport of goods by road and issues consignment note, by whatever name called. 13. Section 3 of the Central Excise Act, 1944 provides for the levy of duties specified in the schedules to the Central Excise Tariff Act. Section 4 of the Central Excise Act, 1944 pertains to valuation of excisable goods for purposes of charging of duty on excise. Clause (c) of sub-section (3) of Section 4 defines the term place of removal as follows : (c) place of removal means - (i) a factory or any other place or p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... term has to be interpreted in light of the requirement of the business and it cannot be read restrictively so as to confine only upto the factory or upto the depot of the manufacturers. 15. We are informed that the said decision was carried in appeal by the Revenue. The Karnataka High Court, however, has confirmed the view of the Tribunal. Copy of the judgment, however, is not yet available and therefore not placed before us. 16. If we peruse the definition of the term input service closely, we find that the same is expressed in the form of means and includes . Legislature often uses expression, means, includes and sometimes means and includes; each having different connotation, different purpose and different meaning to be conveyed. 17. It is by now well settled that when a word is defined to mean such and such, the definition is, prima facie, restrictive, whereas where the word is defined to include something, the definition is prima facie expansive. On the other hand, when the Legislature uses the expression means and includes , the definition is meant to be exhaustive. Such principles, however, are subject to exceptions. 17.1 In the case of V.F. G. Insurance Co. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... down in definition. (See : Gough v. Gough, (1891) 2 QB 665; Punjab Land Development and Reclamation Corpn. Ltd. v. Presiding Officer, Labour Court, (1990) 3 SCC 682, at p. 717. The word includes when used, enlarges the meaning of the expression defined so as to comprehend not only such things as they signify according to their natural import but also those things which the clause declares that they shall include. The words means and includes , on the other hand, indicate an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expressions. (See : Dilworth v. Commissioner of Stamps, 1899 AC 99 at pp. 105-106 (Lord Watson); Mahalakshmi Oil Mills v. State of Andhra Pradesh, (1989) 1 SCC 164, at p. 169 : (A.I.R. 1989 S.C. 335 at p. 339). The use of the words means and includes in Rule 2(b) would, therefore, suggest that the definition of college is intended to be exhaustive and not extensive and would cover only the educational institutions falling in the categories specified in Rule 2(b) and other educational institutions are not comprehended. 17.6 In the case of M/s. Black Diamond Beverages v. Commercial T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erpretation submitted by the petitioners that the definition means not only the owner who is the permit holder but also a booking agency who may be in charge of the vehicle without being a permit holder. The entire accent in the definition of owner is on the holder of a permit in respect of the public service motor vehicle. It is the permit which entitles the holder to ply the vehicle. It is because the vehicle is being plied that the passengers and consignors of goods carried by that vehicle become liable to pay not only fare and freight to the owner but also tax thereon to the owner. The words or any person for the time being in charge of such vehicle or responsible for the management of the place of business of such owner indicate that the permit holder will include any person who is in charge of such vehicle of the permit holder or any person who is responsible for the management of the place of business of such owner. The owner cannot escape the liability by stating that any person is for the time being in charge of such vehicles, and, therefore, such person is the owner and not the permit holder. 20. The general rule of construction is not only to look at the words but to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tated that outward transportation service would not be a service used by the manufacturer for clearance of final products from the place of removal. 19. When we hold that outward transportation would be an input service as covered in the expression means part of the definition, it would be difficult to exclude such service on the basis of any interpretation that may be offered of the later portion of the definition which is couched in the expression includes . As already observed, it is held in several decisions that the expression includes cannot be used to oust any activity from the main body of the definition if it is otherwise covered by the expression means . In other words, the expression includes followed by means in any definition is generally understood to be expanding the definition of the term to make it exhaustive, but in no manner can the expression includes be utilized to limit the scope of definition provided in the main body of the definition. To our mind this was also not the intention of the Legislature in the present case. 20. There, of course, are certain areas which still remain to be cleared. It was vehemently contended before us by the counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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